Henri Van Breda talking to his defence lawyer Piet Botha during his trial. File picture: Henk Kruger / African News Agency (ANA)
Henri Van Breda talking to his defence lawyer Piet Botha during his trial. File picture: Henk Kruger / African News Agency (ANA)

Judge Desai unsympathetic in #HenriVanBreda appeal bid

By Catherine Rice Time of article published Aug 14, 2018

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Cape Town - "This case fits like a mosaic, pieces of a jigsaw puzzle ... everything fits together."

Those were the words of Western Cape High Court Judge Siraj Desai who seemed unconvinced by the arguments put forward in convicted murderer Henri Van Breda's application for leave to appeal his conviction and sentence. 

"One rarely gets a case as strong as this against the accused", Desai told defence lawyer Piet Botha on Tuesday.

Henri Van Breda, 23, was convicted in May of the brutal 2015 axe murders of his parents and elder brother, the attempted murder of his younger sister, as well as defeating the ends of justice. 

He received three life sentences, 15 years for attempted murder and a year for defeating the ends of justice - all sentences were ordered to run concurrently.

Defence lawyer Piet Botha argued that Van Breda had been convicted and sentenced based on circumstantial evidence. "We are faced with a very young person spending the rest of his life in jail with only circumstantial evidence against him."

Botha said there was a reasonable prospect that another court would come to a different conclusion.

But Desai countered: "Most criminal trials rely on circumstantial evidence," and pointed out that the defence was not relying on "an irregularity" but rather saying "the onus was not discharged". 

Botha argued that a court of appeal may give more weight to concessions made by blood spatter expert Captain Marius Joubert who testified that the fact that Marli's blood had not been found on the axe was "inexplicable".

"It doesn't require a quantum leap that a court of appeal may find differently."

He also argued that another court may give more weight to the defence's expert witness who testified about flaws in security at the De Zalze Estate in Stellenbosch, where the family resided. 

Furthermore, more weight could be attached to defence witness Dr James Butler's testimony and diagnosis of Van Breda with juvenile myoclonic epilepsy.

"My client's version from that morning to the end of his testimony remained the same in essence."

Desai conceded that the three life sentences he handed down had been severe, but said he had not been given any mitigating factors to deviate from minimum legislation. "I asked you to give me a peg to hang my coat. You gave me no peg." 

"The sentence could have been different if this had been a product of a broken mind." 

But Botha said he could not argue that his client had been remorseful, as he had pleaded not guilty.

Furthermore, he said Van Breda had no motive and evidence showed the family had been "close-knit with no problems". 

Desai shot back: "The flip side of that is what was the motive of an unknown intruder?"

He also said a key aspect of the case, Van Breda's "classic" self-inflicted injuries "were a fundamental pillar in the case". 

State prosecutor Susan Galloway dismissed the defence's argument that the State had not proved premeditation. "He had to go from upstairs to downstairs to fetch the axe and knife. When he attacked his brother he aimed for the head. There cannot be another inference that it was premeditated." 

She said the defence was "nitpicking" and was "missing the wood from the trees". 

She added all had not been "happy families". She said the defence's criticism of the neighbour's testimony had been unfounded. Stephanie Op't Hof had testified about hearing an argument and loud voices coming from the Van Breda house from 10pm until midnight and had been "objective and honest", Galloway said. 

"There is no merit in the application for leave to appeal the conviction and sentence and it should be dismissed," she argued.

Van Breda's girlfriend Danielle Janse Van Rensburg attended court proceedings on Tuesday.

Van Breda is being held at Drakenstein Prison in Paarl.

Desai will deliver his decision on Monday.

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African News Agency/ANA

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